Liability of “undertakings” in damages actions for breach of Articles 101, 102 TFEU: the Skanska judgment of the CJEU
CMLRev 57 (2020), 915–934.
Wolfgang Wurmnest analyses the Skanska ruling of the CJEU of 14 March 2019 (Case C-724/17, Vantaan kaupunki v. Skanska Industrial Solutions Oy, NCC Industry Oy, Asfaltmix Oy, EU:C:2019:204).
The annotation's conclusion on p. 933 states as follows:
"The importance of the Skanska ruling for the development of a coherent
system of private competition law enforcement comes close to that of the
seminal Courage case. Aligning public and private enforcement, the ECJ
clarified that the determination of passive standing is a matter of EU – and not
domestic – law. The concept of 'undertaking' that generally applies to
Articles 101, 102 TFEU determines also the entities that are liable in private
antitrust actions. Even though the case concerned the application of the
economic continuity test, which is one manifestation of the concept of
'undertaking', the judgment can be read as also stating that the economic
entity doctrine applies to private damages actions. Parent companies which
have decisive influence over a subsidiary that participated in a competition law
infringement are therefore jointly and severally liable. Further clarification is
needed with regard to the issue whether every entity of an 'undertaking' can
be held liable for infringements committed by another entity or whether
certain limitations apply."
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